DOCSLIB.ORG

In the Supreme Court of the United States

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
In the Supreme Court of the United States No. In the Supreme Court of the United States STEPHEN M. SHAPIRO, O. JOHN BENISEK, AND MARIA B. PYCHA Petitioners, v. BOBBIE S. MACK AND LINDA H. LAMONE, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITION FOR A WRIT OF CERTIORARI MICHAEL B. KIMBERLY Counsel of Record PAUL W. HUGHES JEFFREY S. REDFERN Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3127 [email protected] Counsel for Petitioners QUESTION PRESENTED The Three-Judge Court Act requires the conven- ing of three-judge district courts to hear a wide range of particularly important lawsuits, including consti- tutional challenges to the apportionment of congres- sional districts and certain actions under the Voting Rights Act, Bipartisan Campaign Reform Act, Prison Litigation Reform Act, and Communications Act. The Three-Judge Court Act provides that a three-judge court shall be convened to hear such cases unless the single judge to whom the case is initially referred “determines that three judges are not required.” 28 U.S.C. § 2284(a), (b)(1). In Goosby v. Osser, 409 U.S. 512 (1973), this Court held that the Three-Judge Court Act “does not require the convening of a three-judge court when the [claim] is insubstantial.” Id. at 518. A claim is in- substantial “for this purpose” if it is “‘obviously friv- olous,’” “‘essentially fictitious,’” or “inescapably * * * foreclose[d]” by this Court’s precedents. Ibid. The question presented, which has divided the lower courts, is as follows: May a single-judge district court determine that a complaint covered by 28 U.S.C. § 2284 is insub- stantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Rule 12(b)(6)? ii TABLE OF CONTENTS Question Presented ..................................................... i Table of Authorities................................................... iii Opinions Below............................................................1 Jurisdiction..................................................................1 Statutory Provision Involved......................................1 Statement ....................................................................3 A. Statutory background.......................................4 B. Factual background..........................................6 C. Procedural background ....................................8 Reasons for Granting the Petition............................10 A. Duckworth conflicts with this Court’s precedents .......................................................10 B. Duckworth conflicts with the holdings of other courts of appeals ...............................14 C. The question presented is important.............18 D. Petitioners’ First Amendment claim is not obviously frivolous....................................26 Conclusion .................................................................30 Appendix A — Court of appeals opinion ..................1a Appendix B — District court opinion .......................3a Appendix C — Order denying rehearing................22a Appendix D — Redistricting map...........................23a iii TABLE OF AUTHORITIES Cases Ala. Leg. Black Caucus v. Alabama, 988 F. Supp. 2d 1285 (M.D. Ala. 2013) .............................................18, 24 Allen v. State Bd. of Elections, 393 U.S. 544 (1969)..............................................22 Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................28 Anne Arundel Cty. Republican Cent. Cent. Comm. v. State Admin. Bd. of Elections, 781 F. Supp. 394 (D. Md. 1991)...........................29 Ariz. State Leg. v. Ariz. Indep. Redis- tricting Comm’n, 2013 WL 4177067 (D. Ariz. Aug. 14, 2013)........................................23 Arizona State Leg. v. Arizona Indep. Redistricting Comm’n, 997 F. Supp. 2d 1047 (D. Ariz. 2014) ............18, 23 Backus v. South Carolina, 857 F. Supp. 2d 553 (D.S.C.) ...............................19 Bailey v. Patterson, 369 U.S. 31 (1962)................................................18 Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) .................19 Bell v. Hood, 327 U.S. 678 (1946)..............................................12 Bovee v. Broom, 732 F.3d 743 (7th Cir. 2013)................................17 iv Cases—continued Brown v. Ky. Leg. Research Comm’n, 966 F. Supp. 2d 709 (E.D. Ky. 2013)...................18 Brown v. Plata, 131 S. Ct. 1910 (2011)..........................................21 Butler v. City of Columbia, 2010 WL 1372299 (D.S.C. Apr. 5, 2010) .............19 Cal. Democratic Party v. Jones, 530 U.S. 567 (2000)..............................................27 Carter v. Va. State Bd. of Elections, 2011 WL 1637942 (W.D. Va. Apr. 29, 2011)......................................20 Citizens United v. FEC, 558 U.S. 310 (2010)..............................................20 City of Kings Mountain v. Holder, 746 F. Supp. 2d 46 (D.D.C. 2010)........................19 Clements v. Fashing, 457 U.S. 957 (1982)........................................28, 29 Clemons v. U.S. Dep’t of Commerce, 710 F. Supp. 2d 570 (N.D. Miss.).........................19 Coleman v. Brown, 952 F. Supp. 2d 901 (E.D. Cal. 2013)..................21 Coleman v. Schwarzenegger, 922 F. Supp. 2d 882 (E.D. Cal. 2009)..................21 Desena v. Maine, 793 F. Supp. 2d 456 (D. Me. 2011)......................19 Duckworth v. State Administration Board of Election Laws, 332 F.3d 769 (2003)...................................... passim v Cases—continued Duckworth v. State Bd. of Elections, 213 F. Supp. 2d 543 (D. Md. 2002)......................29 Elrod v. Burns, 427 U.S. 347 (1976)..............................................27 Essex v. Kobach, 874 F. Supp. 2d 1069 (D. Kan. 2012) ..................19 Evenwel v. Perry, 2014 WL 5780507 (W.D. Tex. Nov. 5, 2014) .......18 Favors v. Cuomo, 2012 WL 928223 (E.D.N.Y. Mar. 19, 2012).........19 FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985)..............................................21 Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011)............7, 11, 19 Garcia v. 2011 Legislative Reapportionment Com’n, 559 F. App’x 128 (3d Cir. 2014)...........................20 Garcia v. 2011 Legislative Reapportionment Com’n, 938 F. Supp. 2d 542 (E.D. Pa. 2013) ...................20 Gonzalez v. Auto. Emps. Credit Union, 419 U.S. 90 (1974)........................................5, 6, 13 Goosby v. Osser, 409 U.S. 512 (1973)...................................... passim Gorrell v. O’Malley, 2012 WL 226919 (D. Md. Jan. 19, 2012).............20 vi Cases—continued Hagans v. Lavine, 415 U.S. 528 (1974)........................................12, 17 Harris v. Arizona Indep. Redistricting Comm’n, 993 F. Supp. 2d 1042 (D. Ariz. 2014) ............18, 24 Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713 (1962)....................................6, 13, 14 James v. FEC, 914 F. Supp. 2d 1 (D.D.C. 2012)..........................19 Jefferson Cnty. Comm’n v. Tennant, 876 F. Supp. 2d 682 (S.D. W. Va.).......................19 Kalson v. Paterson, 542 F.3d 281 (2d Cir. 2008) .............................5, 18 Kostick v. Nago, 960 F. Supp. 2d 1074 (D. Haw. 2013)..................18 Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498 (1972)..............................................29 LaRouche v. Fowler, 152 F.3d 974 (D.C. Cir. 1998)...................... passim League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006)..............................................20 Little v. Strange, 796 F. Supp. 2d 1314 (M.D. Ala. 2011) ...............19 Lubin v. Panish, 415 U.S. 709 (1974)..............................................28 vii Cases—continued LULAC of Texas v. Texas, 113 F.3d 53 (5th Cir. 1997) ...........................16, 17 Marks v. United States, 430 U.S. 188 (1977)..............................................27 McConnell v. FEC, 540 U.S. 93 (2003)................................................21 McCutcheon v. FEC, 134 S. Ct. 1434 (2014)....................................20, 21 McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D.C. 2012)......................19 McLucas v. DeChamplain, 421 U.S. 21 (1975)............................................5, 12 Mi Familia Vota Educ. Fund v. Detzner, 891 F. Supp. 2d 1326 (M.D. Fla. 2012) ...............19 NAACP v. Snyder, 879 F. Supp. 2d 662 (E.D. Mich. 2012)................19 Nat’l Interfaith Cable Coal., Inc. v. FCC, 512 U.S. 1230 (1994)............................................21 Neitzke v. Williams, 490 U.S. 319 (1989)..............................................12 New Hampshire v. Holder, 293 F.R.D. 1 (D.D.C. 2013) ..................................19 Olson v. O’Malley, 2012 WL 764421 (D. Md. Mar. 6, 2012)..............20 Page v. Bartels, 248 F.3d 175 (3d Cir. 2001) ......................... passim Page v. Va. State Bd. of Elections, 15 F. Supp. 3d 657 (E.D. Va. 2014).....................19 viii Cases—continued Perez v. Texas, 970 F. Supp. 2d 593 (W.D. Tex. 2013).................18 Perry v. Perez, 132 S. Ct. 934 (2012)............................................20 Petteway v. Henry, 2011 WL 6148674 (S.D. Tex. 2011)...............19, 24 Phillips v. United States, 312 U.S. 246 (1941)..............................................24 Reynolds v. Sims, 377 U.S. 533 (1964)................................................9 Rufer v. FEC, 2014 WL 4076053 (D.D.C. 2014).........................21
Load more

Recommended publications
  • Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit
    No. 15-___ IN THE SEQUENOM, INC., Petitioner, v. ARIOSA DIAGNOSTICS, INC., NATERA, INC., AND DNA DIAGNOSTICS CENTER, INC. Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit PETITION FOR A WRIT OF CERTIORARI Michael J. Malecek Thomas C. Goldstein Robert Barnes Counsel of Record KAYE SCHOLER LLP Eric F. Citron Two Palo Alto Square G OLDSTEIN & RUSSELL, P.C. Suite 400 7475 Wisconsin Ave. 3000 El Camino Real Suite 850 Palo Alto, CA 94306 Bethesda, MD 20814 (650) 319-4500 (202) 362-0636 [email protected] QUESTION PRESENTED In 1996, two doctors discovered cell-free fetal DNA (cffDNA) circulating in maternal plasma. They used that discovery to invent a test for detecting fetal genetic conditions in early pregnancy that avoided dangerous, invasive techniques. Their patent teaches technicians to take a maternal blood sample, keep the non-cellular portion (which was “previously discarded as medical waste”), amplify the genetic material with- in (which they alone knew about), and identify pater- nally inherited sequences as a means of distinguish- ing fetal and maternal DNA. Notably, this method does not preempt other demonstrated uses of cffDNA. The Federal Circuit “agree[d]” that this invention “combined and utilized man-made tools of biotechnol- ogy in a new way that revolutionized prenatal care.” Pet.App. 18a. But it still held that Mayo Collabora- tive Servs. v. Prometheus Labs., 132 S. Ct. 1289 (2012), makes all such inventions patent-ineligible as a matter of law if their new combination involves only a “natural phenomenon” and techniques that were “routine” or “conventional” on their own.
    [Show full text]
  • Bush V. Superior Court (Rains), 10 Cal.App.4Th 1374 (1992)
    Supreme Court, U.S. FILED ( p NOV 272018 1.1 No. k I \ zy OFFICE OF THE CLERK iiiii ORGNAL SUPREME COURT OF THE UNITED STATES RASH B. GHOSH and INTERNATIONAL INSTITUTE OF BENGAL BASIN, Petitioners, V. CITY OF BERKELEY, ZACH COWAN, LAURA MCKINNEY, JOAN MACQUARRIE, PATRICK EMMONS, GREG HEIDENRICH, CARLOS ROMO, GREG DANIEL, MANAGEWEST, BENJAMIN MCGREW, KORMAN & NG, INC., MICHAEL KORMAN, MIRIAM NG, ROMAN FAN, ROBERT RICHERSON, KRISTEN DIEDRE RICHERSON, ANDREA RICHERSON, DEBRA A. RICHERSON, AND PRISM TRUST, Re s p0 ii den t S. On Petition For a Writ of Certiorari To The California Court of Appeal, First Appellate District PETITION FOR A WRIT OF CERTIORARI Rash B. Ghosh Pro Se P. 0. Box 11553 Berkeley, CA 94712 (510) 575-5112 THE QUESTION PRESENTED Ghosh owned two adjacent buildings in Berkeley, and the co- plaintiff, International Institute of Bengal Basin (IIBB) occupied one of them. In a pending lawsuit, petitioners filed a third amended complaint, alleging that newly discovered evidence showed that the newly-named defendants conspired with the other defendants to deprive them of their property and arrange for it to be sold at a below-market price to some of the new. defendants. The trial court sustained demurrers by the defendants, and Ghosh and IIBB sought to appeal. Because Petitioner Ghosh had been found to be a vexatious litigant, he had to make application to the presiding justice of the Court of Appeal for permission to appeal, and show that the appeal had merit. He made application, and pointed out numerous (and sometimes obvious) errors the trial court had made in sustaining the demurrer.
    [Show full text]
  • ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional Philosophy of Writs
    CLASS- B.A.LL.B VIIIth SEMESTER SUBJECT- ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional philosophy of Writs: A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual. Writ is an instrument or order of the Court by which the Court (Supreme Court or High Courts) directs an Individual or official or an authority to do an act or abstain from doing an act. Understanding of Article 32 Article 32 is the right to constitutional remedies enshrined under Part III of the constitution. Right to constitutional remedies was considered as a heart and soul of the constitution by Dr. Bhim Rao Ambedkar. Article 32 makes the Supreme court as a protector and guarantor of the Fundamental rights. Article 32(1) states that if any fundamental rights guaranteed under Part III of the Constitution is violated by the government then the person has right to move the Supreme Court for the enforcement of his fundamental rights. Article 32(2) gives power to the Supreme court to issue writs, orders or direction. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court. Article 32(3) states that parliament by law can empower any of courts within the local jurisdiction of India to issue writs, order or directions guaranteed under Article 32(2).
    [Show full text]
  • Exhaustion of State Remedies Before Bringing Federal Habeas Corpus: a Reappraisal of U.S. Code Section
    Nebraska Law Review Volume 43 | Issue 1 Article 7 1963 Exhaustion of State Remedies before Bringing Federal Habeas Corpus: A Reappraisal of U.S. Code Section Merritt aJ mes University of Nebraska College of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Merritt aJ mes, Exhaustion of State Remedies before Bringing Federal Habeas Corpus: A Reappraisal of U.S. Code Section, 43 Neb. L. Rev. 120 (1964) Available at: https://digitalcommons.unl.edu/nlr/vol43/iss1/7 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. NEBRASKA LAW REVIEW VOL. 43, NO. 1 EXHAUSTION OF STATE REMEDIES BEFORE BRINGING FEDERAL HABEAS CORPUS: A REAPPRAISAL OF U.S. CODE SECTION 2254 I. INTRODUCTION There are many instances in which a state's prisoner, after being denied his liberty for years, has subsequently, upon issuance of federal writ of habeas corpus, either been proven innocent or adjudged entitled to a new trial upon grounds that he was denied some constitutional right during the process of his state court trial.' In some of these cases it has been clear from the very beginning that if the allegations of the writ were proven, the de- tention was unconstitutional. Yet the prisoner is still forced to endure years of confinement while exhausting state remedies before 2 federal habeas corpus is available to him.
    [Show full text]
  • 20210716182833230 2021.0716 OABA Petition for Certiorari.Pdf
    NO. _______________ SUPREME COURT OF THE UNITED STATES _______________ OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC.; MARYLAND STATE SHOWMEN'S ASSOCIATION, INC.; THE SMALL AND SEASONAL BUSINESS LEGAL CENTER; LASTING IMPRESSIONS LANDSCAPE CONTRACTORS, INC.; THREE SEASONS LANDSCAPE CONTRACTING SERVICES, INC.; NEW CASTLE LAWN & LANDSCAPE, INC., Petitioners v. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; DEPARTMENT OF LABOR; EMPLOYMENT & TRAINING ADMINISTRATION; WAGE & HOUR DIVISION, Respondents _______________ On Petition for Writ of Certiorari to the United States Court Of Appeals for the Fourth Circuit _______________ PETITION FOR WRIT OF CERTIORARI _______________ R. Wayne Pierce, Esq. Leon R. Sequeira, Esq. The Pierce Law Firm, LLC Counsel of Record 133 Defense Hwy, Suite 201 616 South Adams Street Annapolis, Maryland 21401 Arlington, Virginia 22204 410-573-9955 (202) 255-9023 [email protected] [email protected] Counsel for Petitioners QUESTION PRESENTED With exceptions not relevant hereto, Congress has expressly bestowed all "administration and enforcement" functions under the Immigration and Nationality Act, 8 U.S.C. §§1101 et seq., including rulemaking and adjudication for the admission of temporary, non-agricultural workers under the H-2B visa program, exclusively on the Secretary of Homeland Security. Id. §§ 1101(a)(15)(H)(ii)(b), 1103(a)(1), (3), and 1184(a)(1), (c)(1). The Secretary adjudicates employer H-2B petitions "after consultation with appropriate agencies of the Government." Id. § 1184(c)(1). The question presented is: Whether Congress, consistent with the nondelegation doctrine and clear-statement rule, impliedly authorized the Secretary of Labor individually to promulgate legislative rules for the admission of H-2B workers and adjudicate H-2B labor certifications.
    [Show full text]
  • WALKER V. GEORGIA
    Cite as: 555 U. S. ____ (2008) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES ARTEMUS RICK WALKER v. GEORGIA ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 08–5385. Decided October 20, 2008 JUSTICE THOMAS, concurring in the denial of the peti- tion of certiorari. Petitioner brutally murdered Lynwood Ray Gresham, and was sentenced to death for his crime. JUSTICE STEVENS objects to the proportionality review undertaken by the Georgia Supreme Court on direct review of peti- tioner’s capital sentence. The Georgia Supreme Court, however, afforded petitioner’s sentence precisely the same proportionality review endorsed by this Court in McCleskey v. Kemp, 481 U. S. 279 (1987); Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S. 862 (1983); and Gregg v. Georgia, 428 U. S. 153 (1976), and described in Pulley as a “safeguard against arbitrary or capricious sentencing” additional to that which is constitu- tionally required, Pulley, supra, at 45. Because the Geor- gia Supreme Court made no error in applying its statuto- rily required proportionality review in this case, I concur in the denial of certiorari. In May 1999, petitioner recruited Gary Lee Griffin to help him “rob and kill a rich white man” and “take the money, take the jewels.” Pet. for Cert. 5 (internal quota- tion marks omitted); 282 Ga. 774, 774–775, 653 S. E. 2d 439, 443, (2007). Petitioner and Griffin packed two bicy- cles in a borrowed car, dressed in black, and took a knife and stun gun to Gresham’s house.
    [Show full text]
  • Some Practical Suggestions on Defense Motions and Other Procedures Before Trial Jackson W
    [Vol. 40 Some Practical Suggestions on Defense Motions and Other Procedures Before Trial Jackson W. Chance* A ,mxARY objective of the defense trial lawyer should be to terminate the litigation successfully at the earliest possible stage of the litigation in a manner which will afford reasonable assurance of receiving favorable treatment in the event of an appeal. The accomplishment of this objective before trial on the merits is much to be desired. The law affords a variety of tools for the accomplishment of that end in appropriate cases. The prac- tical usefulness of some of these implements is the main burden of this paper. Some suggestions as to when one of these tools may work if another is out of order may be worthwhile. The practitioner starts with the premise that on the hearing of a de- murrer the court is bound by the facts alleged in the pleading and is not entitled to consider facts presented to it through the medium of an af- fidavit.' But should he stop with that rule? Or are there other means avail- able, in proper cases, to reach false allegations or facts not alleged in the complaint, either on demurrer or on motion and before trial on the merits? The answer to that question presents interesting possibilities to the prac- ticing attorney. 1. InitialProblem of Whether or Not to Make a PreliminaryMove The pretrial moves discussed in this paper are aimed primarily at vul- nerable complaints. To take advantage of such vulnerability by adjudica- tion before trial on the merits is the goal.
    [Show full text]
  • Proportionality As a Principle of Limited Government!
    032006 02_RISTROPH.DOC 4/24/2006 12:27 PM PROPORTIONALITY AS A PRINCIPLE ! OF LIMITED GOVERNMENT ALICE RISTROPH† ABSTRACT This Article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory—an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state’s penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in liberty and equality, restrict the pursuit of penological goals. Principles of proportionality put the limits into any theory of limited government, and proportionality in the sentencing context is just one instance of these limitations on state power. This understanding of proportionality gives reason to doubt the assertion that determinations of proportionality are necessarily best left to legislatures. In doctrinal contexts other than criminal sentencing, proportionality is frequently used as a mechanism of judicial review to prevent legislative encroachments on individual rights and other exercises of excessive power. In the criminal sentencing context, a constitutional proportionality requirement should serve as a limit on penal power. Copyright © 2005 by Alice Ristroph. † Associate Professor, University of Utah, S.J. Quinney College of Law. A.B., Harvard College; J.D., Harvard Law School; Ph.D., Harvard University; L.L.M., Columbia Law School.
    [Show full text]
  • Practical Guide on Admissibility Criteria
    Practical Guide on Admissibility Criteria Updated on 1 August 2021 This Guide has been prepared by the Registry and does not bind the Court. Practical guide on admissibility criteria Publishers or organisations wishing to translate and/or reproduce all or part of this report in the form of a printed or electronic publication are invited to contact [email protected] for information on the authorisation procedure. If you wish to know which translations of the Case-Law Guides are currently under way, please see Pending translations. This Guide was originally drafted in English. It is updated regularly and, most recently, on 1 August 2021. It may be subject to editorial revision. The Admissibility Guide and the Case-Law Guides are available for downloading at www.echr.coe.int (Case-law – Case-law analysis – Admissibility guides). For publication updates please follow the Court’s Twitter account at https://twitter.com/ECHR_CEDH. © Council of Europe/European Court of Human Rights, 2021 European Court of Human Rights 2/109 Last update: 01.08.2021 Practical guide on admissibility criteria Table of contents Note to readers ........................................................................................... 6 Introduction ................................................................................................ 7 A. Individual application ............................................................................................................. 9 1. Purpose of the provision ..................................................................................................
    [Show full text]
  • Petitioners, V
    No. _______ IN THE Supreme Court of the United States AMERICAN HOSPITAL ASSOCIATION, et al., Petitioners, v. NORRIS COCHRAN, in his official capacity as the Acting Sec- retary of Health and Human Services, et al., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PETITION FOR A WRIT OF CERTIORARI DONALD B. VERRILLI, JR. Counsel of Record JEREMY S. KREISBERG MUNGER, TOLLES & OLSON LLP 601 Massachusetts Ave. NW Suite 500E Washington, DC 20001 (202) 220-1100 [email protected] Counsel for Petitioners i QUESTION PRESENTED Under federal law, the reimbursement rate paid by Medicare for specified covered outpatient drugs is set based on one of two alternative payment methodolo- gies. If the Department of Health and Human Services (HHS) has collected adequate “hospital acquisition cost survey data,” it sets the reimbursement rate equal to the “average acquisition cost for the drug,” and “may vary” that rate “by hospital group.” 42 U.S.C. 1395l(t)(14)(A)(iii)(I). If HHS has not collected ade- quate “hospital acquisition cost data,” it must set a re- imbursement rate equal to the “average price for the drug,” which is “calculated and adjusted by [HHS] as necessary for purposes of” the statute. 42 U.S.C. 1395l(t)(14)(A)(iii)(II). The question presented is whether Chevron defer- ence permits HHS to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisi- tion cost survey data. ii PARTIES TO THE PROCEEDING Petitioners are the American Hospital Association, the Association of American Medical Colleges, Amer- ica’s Essential Hospitals, Northern Light Health, Henry Ford Health System, and Fletcher Hospital, Inc., d/b/a AdventHealth Hendersonville.
    [Show full text]
  • North Carolina Rules of Appellate Procedure
    NORTH CAROLINA RULES OF APPELLATE PROCEDURE Codified by the Office of Administrative Counsel, Supreme Court of North Carolina [email protected] Grant E. Buckner www.NCcourts.gov/courts/supreme-court Administrative Counsel Table of Contents _________________________ Article I Applicability of Rules Rule 1. Title; Scope of Rules; Trial Tribunal Defined ............................................... 12 (a) Title. (b) Scope of Rules. (c) Rules Do Not Affect Jurisdiction. (d) Definition of Trial Tribunal. Rule 2. Suspension of Rules ....................................................................................... 12 Article II Appeals from Judgments and Orders of Superior Courts and District Courts Rule 3. Appeal in Civil Cases—How and When Taken ............................................. 13 (a) Filing the Notice of Appeal. (b) Special Provisions. (c) Time for Taking Appeal. (d) Content of Notice of Appeal. (e) Service of Notice of Appeal. Rule 3.1. Review in Cases Governed by Subchapter I of the Juvenile Code ............ 14 (a) Scope. (b) Filing the Notice of Appeal. (c) Expediting the Delivery of the Transcript. (d) Expediting the Filing of the Record on Appeal. (e) No-Merit Briefs. (f) Word-Count Limitations Applicable to Briefs. (g) Motions for Extensions of Time. (h) Duty of Trial Counsel. (i) Electronic Filing Required. Rule 4. Appeal in Criminal Cases—How and When Taken ...................................... 16 (a) Manner and Time. (b) Content of Notice of Appeal. 2 (c) Service of Notice of Appeal. (d) To Which Appellate Court Addressed. Rule 5. Joinder of Parties on Appeal .......................................................................... 16 (a) Appellants. (b) Appellees. (c) Procedure after Joinder. Rule 6. Security for Costs on Appeal ......................................................................... 17 (a) In Regular Course. (b) In Forma Pauperis Appeals. (c) Filed with Record on Appeal.
    [Show full text]
  • Strategic Decision-Making and Justiciability
    Deciding to Not Decide: A Longitudinal Analysis of the Politics of Secondary Access on the U.S. Supreme Court A dissertation submitted to Kent State University in partial fulfillment of the requirements for the degree of Doctor of Philosophy by Andrew Povtak May 2011 Dissertation written by Andrew Povtak B.A., Case Western Reserve University, 2000 J.D., Cleveland State University, 2004 Approved by _____________________________, Chair, Doctoral Dissertation Committee Christopher Banks _____________________________, Members, Doctoral Dissertation Committee Ryan Claassen _____________________________, Mark Colvin _____________________________, Elizabeth Smith-Pryor _____________________________, Graduate Faculty Representative Stephen Webster Accepted by ______________________________, Chair, Department of Political Science Steven Hook ______________________________, Dean, College of Arts and Sciences John R.D. Stalvey ii Table of Contents List of Tables…………………………………………………………………...iv Acknowledgements……………………………………………………………v Chapter 1 – Introduction………………………………………………………1 I. An Overview of the U.S. Supreme Court………………………...3 II. Jurisdictional and Procedural Doctrines…………………………8 III. The Elements of Justiciability: Standing, Timing, and Political Question…………………………………………11 IV. Justiciability Issues: Legal and Political Science Research…..18 V. Data and Methods………………………………………………....28 VI. Conclusion…………………………………………………………41 Chapter 2 – Assessing the Attitudinal and Legal Models…………………42 I. Literature Review: Models of Individual Justice Voting
    [Show full text]